Panganiban: 16 votes needed to convict, but realities also matter

MANILA, Philippines — While mathematics will always be about exact computations — like how one-third of 24 senator-judges will always be 16 — former Supreme Court (SC) Chief Justice Artemio Panganiban said that realities must also be considered in navigating proposals to lower the number of votes needed to convict Vice President Sara Duterte.

In his speech on Wednesday, as one of the amici curiae invited by the Senate Impeachment Court to shed light on discussions about lowering the conviction threshold, Panganiban said that there are two ways of interpreting laws of the land — from the literal meaning or verba legis, to the reason why the law was written or ratio legis est anima.

Verba legis, Panganiban said while quoting the SC, is plainly reading the law through its ordinary meaning.  If this is followed, Article XI, Section 3(5) of the 1987 Constitution will mean that an impeachable official under trial will be convicted through a two-thirds vote or 16 out of 24 members.

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READ: Senate impeachment court claims impartiality in amici curiae selection 

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“The first method is verba legis, words are plainly read and given their ordinary meaning, in such cases there is to quote the Supreme Court of the Philippines, no need for interpretation but only application of the provision.  The Senate, as we all know, has 24 members under the Constitution, two-thirds of 24 is mathematically 16.  Therefore, 16 votes are necessary to convict,” Panganiban said.

“Indeed, mathematics your Honors is an exact science in the abstract — to repeat, in the abstract.  Why?  Because two plus two is always four in the abstract; three plus three equals six; two times 10 equals always 20 — therefore, 24 multiplied by two-thirds is always 16 in the abstract,” he added.

However, there is also the matter of ratio legis est anima, Panganiban noted, which considers the reality in interpreting the law.

READ: Luistro sees lower conviction vote if Senate numbers fall 

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Pangainban said that mathematics with reality considered will not always have two as an answer for one-plus-one, using the example of two drops of water being combined to form one single drop of water.

“Reality, sometimes your Honors, changes the denominator in mathematics.  In the same way, constitutional interpretation cannot always stop at abstract mathematics, we must look at the intent and the purpose of constitutional provisions, the circumstances in which they operate, and the goals they seek to achieve,” he said.

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“Which brings us to the second method of interpretation, or the ratio legis est anima, or to quote the Supreme Court, ‘the reason of the law is the soul of the law.’  The text must be understood with its constitutional ambiance,” he added.

READ: Panganiban: Is it fair to let those who hide, enjoy abroad, join trial?

Panganiban also said that the interpretation of the laws, or the Constitution in this matter, falls under an independent branch of government, which is the Judiciary.  But in the case of the impeachment — since the Senate has the sole prerogative to try and decide impeachment cases — it will be the Senate Impeachment Court.

“Relevantly, your Honors may ask, should the interpretation of the drafters of the Constitution prevail?  With due respect, not necessarily.  In our Constitution allocation and separation of powers, and the principle of checks and balances, the makers of the law are not the final authorities on interpretation,” he said.

“That delicate task is lodged in an independent branch of government, the Judiciary.  And in the present case, the Honorable Senate,” he added.

Aside from Panganiban, three former SC justices were appointed to be part of the amici curiae, which is tasked to provide insights on calls to lower the threshold needed to convict Vice President Sara Duterte:

• retired Chief Justice Reynato Puno
• retired Chief Justice Hilario Davide Jr.
• Associate Justice Rodolfo Azcuna

Later in his speech, Panganiban asked whether it would be fair to allow senators who enjoy tourist spots abroad or those hiding “in the dark corners of the world” to participate in the impeachment trial’s voting process, when others have allotted time in hearing arguments and examining evidence.

Panganiban provided a more graphic example — senator-judges who are supposed to be examining the witnesses’ testimonies and evidence enjoying tourist spots, compared to those who carried the burden of hearing the different arguments of opposing sides.

While the normal answer to a two-thirds of 24 senator-judges is 16, some question how some senator-judges can make a sound decision if they have not observed the proceedings and failed to study documents and witnesses’ testimonies.

Some individuals supportive of the Vice President, meanwhile, said that all members of the Senate refer even to senators who are beyond the coercive powers of the chamber, since their titles as Senators were not removed from them.

As of writing, four senators have missed a huge chunk of the trial: Senators Jinggoy Estrada, Rodante Marcoleta, and Ronald dela Rosa have not attended a single trial day.

Estrada and Marcoleta have been detained on separate plunder raps, while dela Rosa has evaded public eye amid an arrest order from the International Criminal Court.

Senator Loren Legarda, on the other hand, left the country early August — back when the prosecution team was just beginning to present witnesses and evidence for Article I of the Articles of Impeachment, or the allegation that confidential funds within Duterte’s offices were misused.

If four members of the Senate Impeachment Court will not be allowed to vote for Duterte’s case, then the number needed to convict the Vice President will go down from 16 to 14.

Last June 15, lead public prosecutor and Batangas Rep. Gerville Luistro said that the vote threshold for convicting Duterte in her impeachment trial should be reduced from 16 to 14 if more senators become unable to participate in the trial — as there are possible complaints against several members of the Senate.

Eventually, counsel for the prosecution Benjamin Tolosa said the goal of the prosecution team is to build a case with overwhelming evidence that can convict Duterte regardless of how the constitutional provision on the threshold is interpreted.

During a press briefing last June 22 — on the sidelines of the pretrial proceedings — Tolosa was asked to elaborate his earlier statement about the defense panel seeking an immediate discussion on the votes needed to convict Duterte.

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Tolosa declined to give his opinion on whether there is a need to lower the number of the votes needed to convict Duterte, but he said their intention is to ensure that there is a “compelling case” that can sustain a conviction, whatever the number is. /mr